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Territoriality In Intellectual Property Rights

Creators and legal practitioners are sometimes confused when they think about intellectual property rights in global terms. Although its true that creators retain so-called “global rights” to their works unless and until they are assigned or transferred territorially, it does not follow that rights owners immediately or automatically receive the benefit of protection for their works everywhere around the world from the moment they are created. Yet mechanisms do exist to facilitate such protection and related trade involving intellectual property rights amongst different jurisdictions.

Like all other legislation, intellectual property rights in any jurisdiction begin and end at its national borders and are a function of whatever the legislature there says they are, no more and no less. Laws devised in Thailand, for example, are also administered and enforced strictly and only within Thailand. There is no such thing as “international law”; the legal protections extended to individuals in Thailand apply only in Thailand cannot be further extended into other jurisdictions, nor are there any legal protections that are extended universally and automatically by the cosmos to individuals in every global jurisdiction. What’s permissible in one jurisdiction may be forbidden in another.

What exits instead, prompted by a global marketplace dating back centuries, is a series of international treaties so that national protections can be coordinated and standardized wherever feasible. These treaties are negotiated by sovereign governments (although they’re typically administered thereafter by multilateral organizations); countries don’t surrender their national identity in an international arena, and participation is voluntary rather than compulsory.

Treaty signatories then agree to return home and take the necessary steps to ensure that their national laws measure up whatever minimum standards they committed to during the negotiations. Treaties are not therefore international laws, per se; they are instead frameworks for reciprocity amongst sovereign governments. They are not self-executing; at best they represent a good-faith commitment for their ratification or acknowledgment within each country’s legislative framework.

But the reason countries negotiate treaties is because of the national treatment provisions and priority benefits they provide, which for example allow rights owners from Thailand to receive the same degree of protection in Germany that German nationals enjoy under German law, and vice-versa. And although the owners of a registered trademark in Thailand would still need to register their trademark in Germany in order for it to be protected there, the requisite treaty ensures that Thai registrants will be treated no less favorably than German registrants.

The purpose of such treaties is to open up global marketplaces wherever possible and provide incentives for international cooperation in certain contexts. In addition to the various patent, trademark, and copyright treaties overseen by the United Nations’ World Intellectual Property Office, multilateral trade agreements overseen by the likes of the World Trade Organization, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) also recognize the importance of facilitating and coordinating international protection for rights owners.

Rights owners in doubt about how or where to avail themselves of intellectual property rights protections in various jurisdictions can always contact a suitably qualified IP practitioner to help devise a cost-effective global strategy in accordance with their needs.

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